Grissom v. State, YY-489
| Decision Date | 30 October 1981 |
| Docket Number | No. YY-489,YY-489 |
| Citation | 405 So.2d 291 |
| Parties | Glenn Elbert GRISSOM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Theodore E. Mack, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
Appellant seeks review of a judgment of conviction and sentence for the offense of grand theft, upon an information alleging the unlawful taking of a "cow." At trial the state proved the unlawful taking of a male calf; appellant contends that the proof at trial thus did not conform to the allegation of the charging document, so as to preclude conviction and sentence. We find that in the circumstances of this case the variance is immaterial, and we affirm the order appealed.
Of course, the proof at trial must substantially conform to the allegations of the charging document, in order that the defendant not be misled and thereby prejudiced, and to insure against reprosecution for the same offense. See, e. g., Robinson v. State, 69 Fla. 521, 68 So. 649 (1915); cf., Fla.R.Crim.P. 3.140(o ). However, where a variance between the allegations and proof is not such as to have misled the defendant or subject him to a substantial possibility of reprosecution for the same offense, the variance is immaterial and does not preclude conviction. See Hagy v. State, 347 So.2d 773 (Fla. 3d DCA 1977); Ricks v. State, 224 So.2d 413 (Fla. 3d DCA 1969). In the circumstances of the present case appellant is not subjected to a substantial possibility of reprosecution, and it is clear that he was not misled or prejudiced in his defense: appellant admitted the "taking," there was no dispute as to the animal taken, and appellant's counsel repeatedly referred to the male calf as a "cow." We therefore conclude that in this case the variance was immaterial and does not preclude conviction.
Appellant cites Higginbotham v. State, 78 Fla. 114, 82 So. 601 (1919), and Mobley v. State, 57 Fla. 22, 49 So. 941 (1909), but these authorities are unavailing in the present case. Neither Higginbotham nor Mobley involved circumstances similar to this case, and the decision in Mobley is expressly predicated upon a larceny statute which distinguishes "cow" and "steer;" the present theft statute, § 812.014, Florida Statutes, is dissimilar and without any such specification or distinction.
Accordingly, the order appealed is affirmed.
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Ingleton v. State, 96-187
...State, 260 So.2d 878, 880 (Fla. 4th DCA 1972); Fitzgerald v. State, 227 So.2d 45, 46 (Fla. 3d DCA 1969). An example is Grissom v. State, 405 So.2d 291 (Fla. 1st DCA 1981). The defendant there was charged with stealing a "cow," which is a female bovine, while the proofs at trial showed he ha......
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Vitko v. United States
...of reprosecution for the same offense, the variance is immaterial and does not preclude conviction." Id. (citing Grissom v. State, 405 So.2d 291, 292 (Fla. 1st DCA 1981)). Mr. Vitko contends that a Florida charging instrument asserting entry into a "building," "business," or "home" does not......
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Long v. State, 4D14–4476.
...v. State, 733 So.2d 1000, 1004 (Fla.1999). However, where the variation is immaterial, reversal is unwarranted. Grissom v. State, 405 So.2d 291, 292 (Fla. 1st DCA 1981) ; see also Raulerson v. State, 358 So.2d 826, 830 (Fla.1978) (finding no fatal variance where the information stated the v......
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Coleman v. State, BF-367
...the variance is immaterial and does not preclude conviction. Brownlee v. State, 427 So.2d 1106 (Fla. 3d DCA 1983); Grissom v. State, 405 So.2d 291 (Fla. 1st DCA 1981). In Brownlee, a defendant was charged in one count of an information with display of a short barreled shotgun while committi......